NLRB delivers three more union-friendly decisions

Wilma Liebman quietly left her post as chair of the National Labor Relations Board (NLRB) when her term expired in late August. Her low-key departure stood in contrast to the fireworks she set off as chairman of a board decried by business interests as tilted toward unions. And she left in her wake three new decisions long-sought by unions, including one that some call the most important NLRB ruling of the past decade.

That Aug. 26 decision in Specialty Healthcare and Rehabilitation Center of Mobile is expected to permit unions to organize small groups of workers within a single job category across a wide range of industries. For unions, smaller units are much easier to organize, particularly if they can cherry-pick a work group that is upset with its supervisor.

“Most companies are endangered by this decision,” says Cliff Nelson, a partner at Constangy, Brooks & Smith. “It’s the most important decision from the labor board in at least the past 10 years.”

The board announced its decisions in Specialty Healthcare and two other cases that help unions organize or retain bargaining authority on Aug. 30. Management-side labor attorneys expect other pro-union decisions by the end of the year. The timing is crucial because the term of one of the three remaining members—controversial Obama appointee Craig Becker—expires Dec. 31. Because Congress is unlikely to allow the president to appoint replacements, the board probably will be left with two members—the new chair, Democrat Mark Pearce, and Republican Brian Hayes—and therefore powerless to act (see “Tables Turned”).

Before that happens, other decisions and a crucial rule-making are expected to further encourage union organizing.

“Specialty Healthcare is just one part of the Becker-Liebman-Pearce board’s effort to make it easier for unions to organize,” says Anita Polli, a shareholder at Littler Mendelson.

Disruptive Impact

Specialty Healthcare grew out of a 2009 organizing effort by the United Steelworkers in a Mobile, Ala., nursing home. The union targeted Certified Nursing Assistants (CNAs), creating a bargaining unit with those employees alone. Under previous NLRB precedent, nursing home nonprofessional employees, including kitchen, maintenance, recreational and laundry workers, along with CNAs, constituted one bargaining unit.

The union election ballots were impounded when the employer challenged the election. The NLRB’s regional director sided with the union. When the case reached the board in December2010, it asked for amicus briefs.The board received 30 briefs, including one from the U.S. Chamber of Commerce warning that revising the bargaining unit standard would increase the likelihood of strikes, jurisdictional disputes and other disruptions to health care operations.

“If this standard is applied in the other industries regulated by the [National Labor Relations] Act, it would have the same disruptive and costly impact on those industries, many of which are still struggling to recover and create new jobs after a prolonged recession,” the chamber added.

“Overwhelming” Standard

Rejecting such arguments, the board upheld the regional director’s decision for the Steelworkers. In its 3-1 decision, the board said an employer challenging the scope of a proposed bargaining unit must show that any excluded employees share “an overwhelming community of interest” with those the union included. Management-side attorneys say the board clearly intends this standard to apply across industry lines.

“The standard is so high that an employer won’t be able to establish an overwhelming community of interest unless the employees have interrelated and intertwined job duties and overlapping or identical supervision,” says Nelson, who represents Specialty Healthcare.

On Sept. 19, the ballots in the long-delayed Specialty Healthcare election were opened, showing the CNAs had voted 39 to 17 in favor of unionizing. That result means the employer is likely to take the case to the federal appeals court, though Nelson would only say “we are considering our options, including our right to appeal.”

EFCA Reincarnated

In tandem with Specialty Healthcare, the NLRB revealed two other important decisions. In UGL-UNICCO Services Company, the board re-established the “successor bar,” which prevents employees from petitioning for decertification of a union or for representation by a different union when the company is acquired. The board said that if the new owner adopts the terms and conditions of the existing contract, the union can remain unchallenged for six months. If the new owner establishes new terms and conditions, the union is protected for one year.

“This is a big win for unions,” says Ken Yerkes, a partner at Barnes & Thornburg. “Protection for incumbent unions against potential removal has been a major issue for unions that saw mergers as a threat.”

The other case, Lamons Gasket Co., re-establishes a rule that protects unions that are recognized by an employer without going through a secret ballot election. Under prior board precedent, following voluntary recognition, employees could file a decertification petition and be granted the right to vote in a secret ballot election. Lamons Gasket bars a decertification election for up to a year. If the union and management agree on a contract within a year, the union remains protected for another three years.

“You could have employees who didn’t want a union who would not have the opportunity to vote for up to four years,” says Hal Coxson, a partner at Ogletree Deakins. “Lamons Gasket is important because it encourages voluntary recognition as opposed to secret ballot elections,” which was the goal of an unsuccessful effort last year to pass the Employee Free Choice Act (EFCA).

Still to come is a controversial rule change shortening the election time frame.Today, the time between the filing of an election petition and the election is about six weeks. The board is expected to reduce that to as little as one week to three weeks. Unions say the current rules allow employers to pressure workers not to unionize, while employers say they need the time to counter union propaganda.

“This [proposed rule change] makes it impossible for the employer to tell his story,” Polli says. “It is basically EFCA with another name.”